Trump’s Executive Order on Outer Space Violates International Space Law

May 10, 2020 by Digital Editor

By: Sharan Bhavnani*

Unlike the realm it seeks to govern, international space law (ISL) is very young. Much like outer space, however, the law is in constant motion. An important recent development in ISL is the Executive Order (EO) issued by President Trump on April 6. It seeks to stake out the U.S.  position on the commercialization of space resources. Though the debate on commercialization traces back to the initial stages of ISL’s development, this is a rare moment where a state has sought to redefine its very foundational principles. This piece shall test the U.S. position against principles of ISL and general international law to highlight its violative nature.

The EO consists of only four short sections, but has wide ramifications. Section 1 of the last paragraph captures the essence of the EO and states that Americans “should have the right to engage in commercial exploration, recovery, and use of resources, consistent with applicable law”. It asserts that “space is a legally and physically unique domain of human activity, and the United States does not view it as a global commons.” This position allowing “appropriation” of outer space and its resources amounts to a violation of international law.

The Appropriate Appropriation

The EO, in extending the 2017 Space Policy Directive-1, elaborates that the “successful long-term exploration and scientific discovery of the Moon, Mars, and other celestial bodies will require partnership with commercial entities to recover and use resources, including water and certain minerals, in outer space” (emphasis added). The line between legality and illegality begins to blur on the “exploration” and “use” of resources. The  Outer Space Treaty, 1967 (OST), in Article I, grants the freedom of  “exploration” and “use.” These rights are primarily limited by the principle of “non-appropriation.” This principle, enshrined in Article II, affirms that “outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means”.

When does legitimate “exploration” and “use” become prohibited “appropriation”? This question is answered by looking at the historical context of the OST, subsequent state practice and the underlying philosophy of ISL.

A Look at History

The OST was negotiated in the context of the “space-race” between the United States and USSR. In 1962, as a consequence of the Cuban Missile Crisis, there was the threat of nuclear arms being deployed in outer space. To prevent this realm from becoming a flashpoint between the two nations, states agreed on two fundamental principles – limiting use to peaceful purposes and prohibiting any state from laying a sovereign claim over any part of outer space.

This begs the question of when legitimate use crosses the line to illegal appropriation. If the nature of the use is exclusive, then it constitutes appropriation. This legal position is reflected in the position states took while negotiating the treaty, the domestic position taken by the two major space-powers, and the opinion of eminent jurists – or, as per Article 38 of the International Court of Justice Statute, “highly qualified publicists.”

First, the travaux préparatoires of the OST includes numerous instances which states made clear that the ‘exclusivity’ standard would determine the permissibility of use. The clearest articulation comes from Kurt Waldheim, the then Ambassador of Austria (and later the Secretary General to the U.N.). In echoing the sentiment of many states he said, “the legal principle that outer space is free for exploration and use by all States would indeed be of little value if enjoyment of that freedom could be destroyed by the use which a single State might make of it.” Thus, in the event a State would, for its sole benefit and to the exclusion of others, use outer space it would contravene the prohibition in Article II of the OST.

Second, though appropriation could be justified by the broad phrase “any other means”, the United States had previously defined its position in domestic law and official statements. For instance, the United States enacted a law in 1969 to clarify that putting a flag on the moon (though, inherently a political act) was “intended as symbolic gesture of national pride in achievement and is not to be construed as a declaration of national appropriation by claim of sovereignty.” Another expression of U.S. policy is seen in the words of President Lyndon B. Johnson: “today, outer space is free. It is unscarred by conflict. No nation holds a concession there. It must remain this way. We of the United States do not acknowledge that there are landlords of outer space who can presume to bargain with the nations of the Earth on the price of access to this domain.”

Third, Judge Manfred Lachs, who was the Chairperson of the first UNCOPUOS Legal Sub-Committee, wrote in his Law of Outer Space, “There can be no doubt that the freedom of action of States in outer space or on celestial bodies is neither unlimited nor absolute and unqualified, but is determined by the right and interest of other States. It can therefore be exercised only to the extent to which as indicated it does not conflict with those rights and interests.”

Therefore, when a state to exercise its rights in outer space, it does not necessarily prevent other States from doing the same. If resources are mined without regulation, however, it can the deprive another state’s rights under the OST.

Recent State Practice

There are recent developments which have aligned the interpretation of the law against an unregulated exploitation of outer space. In two notable instances, the United States in 2015 and Luxembourg in 2017 enacted legislation which allows for the ownership of space resources. Even the UAE adopted a space policy along the lines of the U.S. law in 2016. The U.S.  legislation was discussed in the U.N. Committee on the Peaceful Use of Outer Space session in 2016, and many states opposed it because it amounted to “either a claim of sovereignty or a national appropriation of those bodies and thus could constitute a violation of the Outer Space Treaty.” In fact, Russia even went so far as to state that the U.S. Act amounted to the “manifestations  of  total  disrespect  for  international  law  order”. Other States like Brazil and Belgium also expressed reservations to such a legal position and have argued for the necessity of global consensus, rather than unilateral domestic laws.

A similar situation occurred in 1976 when eight equatorial states (Brazil, Colombia, Congo, Ecuador, Indonesia, Kenya, Uganda and Zaire) through the Bogota Declaration claimed exclusive rights over the geostationary orbit. This, however, was met with opposition from other states citing Article II of the OST. The opposition to unilateral legislation permitting unregulated mining and commercial use has, as in 1976, concretized the norm against exclusive use and control of resources in outer space. This has been suggested by some to be jus cogens (a norm from which States cannot deviate), thus forming the very foundation of space law.

The Philosophy of Space Law

There are two broad principles that guide ISL: equality of opportunity and equity in consequences. The OST recognises in its Preamble that space must be explored and used for “common interest of all mankind.” Article I reiterates that this must be done for the “benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.” Viewed through the lens of the standard of exclusivity, the Ambassador of USSR stated that it was not merely a “statement of the rights of States” rather it was “to guarantee that the interests, not only of individual States, but of all countries and of the international community as a whole, would be protected.” The Ambassador of the United States, commenting on Article I, stated that it “make[s] clear the intent of the Treaty that outer space and celestial bodies are open not just to the big powers or the first arrivals but shall be available to all, both now and in the future. This principle is a strong safeguard for the interests of those states which have, at the present time, little or no active space program of their own.” Even the ICJ has recognised the application of equity considering the “economic interests peculiar to a region”, and similarly  as can be seen in the text of the ‘Benefits Declaration’ the same principle seems to be an extension of equity in the consequence of space use toward the “needs of developing nations.”

President Trump’s EO becomes further problematic in light of the rejection of the “Global Commons” principle. Though this principle has many connotations and subtleties regarding the economic rights of a state over “shared resources,” what is undeniable is that states – in fact – share interconnected rights and obligations over outer space. The disastrous consequences of states moving in this direction would include the collapse of ISL itself as it would open up space as the “province of the mighty,” and deprive developing nations from resources which ought to benefit all mankind.

Therefore, the EO should not be viewed as acceptable state practice in interpreting ISL, and international law as a whole, but rather an aberration to it.


Sharan Bhavnani is an alumnus of the National Law School of India University, Bangalore. He was adjudged the winner of the XXVI Manfred Lachs International Space Law Moot Court Competition 2017, and had also served as the Editor-in-Chief of the National Law School of India Review (NLSIR).